Barry Hayes

The applicant brought a motion for summary judgment to enforce a purported settlement agreement regarding the buyout of the matrimonial home and spousal support, allegedly reached via email exchange of draft minutes following a settlement conference.

The respondent opposed and brought a cross-motion for partition and sale of the home.

The court dismissed the summary judgment motion, finding a genuine issue for trial regarding whether the parties had a meeting of the minds and intended to be bound prior to signing formal minutes.

The cross-motion for partition and sale was also dismissed, as selling the home would prejudice the applicant's trial claim to purchase the respondent's interest.

The Court of Appeal for Ontario heard an appeal concerning the testamentary capacity of a deceased who wrote a holograph will (suicide note) shortly before his death, while under the influence of alcohol and drugs.

The lower court had found a lack of testamentary capacity and issued a blended costs order.

The appellate court revisited the determination of testamentary capacity in suspicious circumstances and the principles governing costs in estate litigation.

The Court found that the application judge erred in principle by failing to apply the correct legal test for testamentary capacity and concluded that the deceased did possess testamentary capacity.

The Court also found that the costs order below was wrongly decided, as the public policy considerations in estate litigation dictated that costs should generally be paid from the estate when the litigation arises from the testator's conduct or suspicious circumstances surrounding the will.

The appeal was allowed, the suicide note was declared a valid will, and the costs order was set aside, with new costs orders made payable from the estate.